X v Bovey - [2014] NZHC 1619

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PLAINTIFF.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2014-454-10 [2014] NZHC 1619

IN THE MATTER of an applicaton for Judicial Review

BETWEEN

X Plaintiff

AND

DAVID BOVEY First Defendant

THE BOARD OF TRUSTEES OF PALMERSTON NORTH BOYS' HIGH SCHOOL

Second Defendant

Hearing: On the papers

Counsel:

C P Brosnahan for Plaintiff
P J Reardon for Defendants

Judgment:

10 July 2014

COSTS JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.30 pm on the 10th day of July 2014.

Solicitors Roger Crowley, Wanganui for Plaintiff
Lawler & Co, Auckland for Defendants

X v BOVEY [2014] NZHC 1619 [10 July 2014]

[1] In my judgment delivered on 22 May 2014 dismissing the plaintiff’s application for judicial review, I reserved costs and invited memoranda. I indicated that those memoranda must address any reasons why it would not be appropriate to apply the usual principle that costs follow the event. Counsel have now filed memoranda.

[2] Counsel for the defendants submits that costs should follow the event and that they should be awarded on a 2B basis. Counsel for the plaintiff submits that an award of costs against the plaintiff would not be appropriate. He submits that the plaintiff is a minor who has sued through his mother acting as his litigation guardian. He submits that the mother, who must necessarily pay if any award of costs is made, was suing without hope of personal gain and that this has been held to be a sufficient reason for not awarding costs against a litigation guardian. Mr Brosnahan refers by
way of example to my judgment in Pickard v Ambrose.1

[3] There is no general principle that a litigation guardian should be spared the costs consequences which would follow if the plaintiff did not require a litigation guardian. On the contrary, r 4.41 of the High Court Rules directs that the fact of representation by a litigation guardian must be disregarded in making an award of costs. That was noted in Pickard v Ambrose. The reason why an award was not made against the litigation guardian in that case was that the defendants had an award of costs against another plaintiff, and the pursuit of the claim by the incapacitated plaintiff had not contributed to increasing the costs incurred by the
defendants.2 That was a special case, and is distinguishable from this case. The fact

that the plaintiff has a litigation guardian is not a factor which can be taken into account in determining costs.

[4] Mr Brosnahan further submits that there were good grounds for the plaintiff to be concerned about the defendants’ treatment of her son. I do not regard that to be a consideration which justifies a departure from the ordinary principle that costs
follow the event.

1 Pickard v Ambrose HC Wellington CIV-2003-091-143, 6 October 2011.
2 At [39].

[5] Mr Brosnahan also refers to my remarks that, on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading X v Bovey

Details

AGLC: X v Bovey [2014] NZHC 1619
Case: [2014] NZHC 1619
Decision Date: 10 July 2014

CaseChat Overview and Summary

In the case of X v Bovey, the plaintiff, a minor, sought judicial review against the first defendant, David Bovey, and the second defendant, the Board of Trustees of Palmerston North Boys' High School. The plaintiff, represented by his mother as litigation guardian, challenged decisions made by the defendants regarding his education. The High Court of New Zealand, Palmerston North Registry, was tasked with determining the appropriate costs following the dismissal of the plaintiff's application for judicial review. The central legal issue was whether the usual principle of costs following the event should be applied, given the circumstances of the case, specifically the minor status of the plaintiff and the involvement of a litigation guardian.

The court addressed submissions from both parties regarding the award of costs. Counsel for the defendants argued for costs to follow the event and proposed a 2B basis for the award. In contrast, counsel for the plaintiff contended that an award of costs against the plaintiff would be inappropriate due to the plaintiff's minor status and the litigation guardian's lack of personal gain. The court considered these arguments but found no general principle exempting litigation guardians from the usual cost consequences. It held that the fact of representation by a litigation guardian should be disregarded when determining costs, as per the High Court Rules. Additionally, the court rejected the argument that the litigation guardian's concern for her son or the defendant's constrained funding justified a departure from the ordinary principle of costs following the event.

After evaluating the submissions, the court concluded that costs should indeed follow the event and be awarded on a 2B basis. The defendants' schedule of costs was found to have a minor error in the calculation of the number of days allowed, leading to an overestimation of the costs. The court adjusted the amount to $25,000 plus disbursements, as agreed upon by the defendants' counsel. This decision underscores the importance of adhering to general principles in cost awards while considering the specific circumstances of each case.

The court ordered that the defendants' costs be $25,000 plus disbursements as claimed, reflecting a fair adjustment from the initially calculated amount. This ruling maintains the predictability and expeditious nature of cost determinations, ensuring that the principles of cost awards are consistently applied.

Orders